A State Without a Constitution

Vidhya

January 26, 2017

“We must state that we were aghast at the blindness to constitutional limitations of the State of Chattisgarh, and some of its advocates, in claiming that any one who questions the conditions of inhumanity that are rampant in many parts of that state ought to necessarily be treated as Maoists, or their sympathizers, and yet in the same breath also claim that it needs the constitutional sanction, under our Constitution, to perpetrate its policies of ruthless violence against the people of Chattisgarh to establish a Constitutional order.”

– Justice B. Sudershan Reddy & Justice Surinder Singh Nijjar, Supreme Court of India, issued this order on July 5th 2011 declaring Salwa Judum and other vigilante groups in the State of Chhattisgarh ‘unconstitutional’.

This order was pronounced on the writ petition filed by Nandini Sundar and others following the burning of hundreds of homes, rape and murder of adivasis by the police and security forces in the villages of Tadmetla, Morapalli and Timmapuram between March 11th and 16th in 2011. The Supreme Court ordered the CBI to enquire into the incident and provide a ‘status report’ within six weeks. After repeated efforts to push the CBI to conduct the enquiry and then release the report, it was made public in October 2016; full five years after the Supreme Court ordered the enquiry. It indicted the Chhattisgarh state police, the erstwhile Special Police Officers (SPOs) or Koya Commandos (now renamed Auxiliary Armed Forces), and CRPF/COBRA paramilitary force for burning over 200 homes of adivasis in the name of fighting Maoists. Teaching social anthropology to the students in the University of Delhi, Professor Nandini Sundar deals with some of the oldest inhabited forests of Central India, an area far removed from the corridors of power in Delhi, corridors which dictate state policy. This brief interview with her reveals the nature of the case in Tadmelta.

Over the last two decades, what has been the impact of state policy in Chhattisgarh? Could you explain this in the context of Tadmetla?

Tadmetla has been targeted since 2006. The whole area was attacked from 2006-7, homes were burnt, and people were killed over a sustained period of time. Then, in 2010, there was an ambush by the Maoists where 76 CRPF personnel were killed. In its wake, the people of Tadmetla were expecting some retaliation by the police. In a way it has always been a very tense area. It has always been cut off and there are no schools functioning there after the Salwa Judum started operating in the area. There is a local Sarpanch Podiyam Panda. When the security forces and police attacked in 2011, he persuaded people to remain in the village. Usually, the people of the area run away when their homes are attacked. This time, he asked them not to flee. He called the press, urged them to take up the case, and got everything going. The people in Tadmetla have been very keen to get some kind of justice. They’ve been testifying and talking about what happened to them. Three people were killed and three women raped besides the hundreds of homes burnt and looted. The people of Tadmelta have been coming to Jagdalpur whenever they’ve been asked. But with the recent spate of mass surrenders and arrests, which are clearly false surrenders orchestrated by the police, they are being targeted again. So, for the people of Tadmetla, it is a continuous history of being targeted and harassed.

Why did the people of Tadmelta decide to file a petition for a CBI enquiry in the Supreme Court? What about the three people killed and three raped?

Sarpanch Panda gave them the courage to talk about it and take up the case. Initially, people weren’t keen on filing it. Rather than running away, the Sarpanch appealed to the people to fight it. There were times when many of them couldn’t come for the hearings to the court in Jagdalpur due to ongoing combing operations in the village. And, there were times when the people of Tadmetla felt disillusioned, wondered what the point of it all is, especially when nothing appeared to be coming out of all this effort. There was some resistance at times. But, on the whole, the people of Tadmetla have been coming and deposing before the court in Jagdalpur.

The CBI enquiry did take up the question of the three people killed and three women raped during the police operation. The fundamental mistake that the CBI has made, and continues to make, is that they took the police FIR as the primary FIR. The FIR filed by the villagers should be the primary FIR as it is based on the complaint initially filed by the villagers. This is something we have been saying again and again, they were not directed to take up the police FIR. They were directed to investigate what happened in Morpalli, Tadmetla and Timmapuram in March 2011. So the CBI has all along been helping the government and, despite that, if they found the police guilty, then it is something. Even now they are not indicting anyone for the rapes and murders.

So, by taking up the police FIR, they committed two serious mistakes; one is treating the police officer who filed the FIR (the person who led the operation) as the complainant in the case. So now, even when they file the charge sheet, he is officially listed as the complainant, even though he should actually be listed as an accused. Secondly, the police FIR only mentions arson by the Maoists, and does not say anything about the rapes, the killings, and the looting. The CBI wrote this strange initial report. Then we wasted a whole year reminding them of the rapes, killings and looting. The way they mentioned it in the status report was that in the course of investigations they discovered rapes and murders also happened. So last year in December the court asked them if these rapes and murders happened at the same time as the burning of homes, or are they things the CBI found subsequently. The CBI was supposed to file an affidavit clarifying this. They did not do so for years. They did it this year in August because we pressed for it in the court.

The CBI was investigating the rapes and murders right from the beginning. But the way they wrote their status reports was really mealy-mouthed and problematic. So fighting that has taken a whole lot of time. Even now they are claiming that the rape cases could not be substantiated as the women could not identify who raped them. This, they argue, is because there was no other evidence available, i.e. forensic evidence. In one case, where a woman was raped, they took her saree. The first time the CBI visited the village was in January 2012, almost a year after the incident. The events happened in 2011. So 10 months later they take her saree. This adivasi woman only has two sarees and she has washed them many times since the event. We told the CBI officials that they are not going to get any biological evidence. We told them not to use it to say that there is no evidence when it is clearly not worth collecting. But they’ve said in the report that the saree revealed no forensic evidence. And that she could not identify who raped her. Therefore, they’ve argued, the CBI cannot say she was raped. This is simply ridiculous. They’ve done this with all the women who’ve filed cases of rape by saying that these women cannot identify who raped them and there is no other evidence to prove otherwise. Now, we are contesting it in the court.

After this CBI status report, five years after the incident, what does the future hold for the people of Tadmetla?

The villagers will have to travel to Raipur to depose because the case is now in the CBI special court. So it is actually a crazy system. Firstly, they have taken five years to establish that somebody has done something, i.e. burned hundreds of homes, and they have established this in a half hearted way. Secondly, they expect the villagers to come and fight their case in Raipur while they keep bringing up bureaucratic hurdles. This procedure appears to be going nowhere. I don’t know if the people themselves are disillusioned. I haven’t been to the area to talk to anybody in a while.

The people of Tadmetla have had to come and depose repeatedly and, after all this time, all they have heard is the rape victims could not identify the rapist and there is no evidence on their saree. Which rape victim is going to come all the way to Raipur again to say the same thing? The CBI can’t even visit the area without being attacked. With Kalluri, how is the CBI going to investigate any further? There has to be something conducive to normal rule of law, investigation, and, if everybody who takes up this issue is going to have their effigy burnt, attacked and threatened, this will not go anywhere.

How do you think this ruling will affect other cases in Chhattisgarh? Will this CBI report set a precedent?

Well, it doesn’t seem like the state government is listening to the Supreme Court. They talk about peace talks on one hand, and burn effigies of the petitioners on another. I mean, Manish Kunjam’s press conference was attacked by twenty-five or so men. One is forced to ask if they believe there is a constitution at all. They don’t seem to think that the word exists anymore. There is a complete culture of impunity.

Hear Nandini Sundar speak on Tadmetla, during the Press Conference organised by Women against Sexual Violence and State Repression (WSS) and Citizens for the Peace and Justice in Chhattisgarh (CPJC), on 12th January 2017 at Indian Women's Press Corps (IWPC), in New Delhi, here:

IGP SRP Kalluri has never taken kindly to interference from "outsiders" in his ham-fisted efforts to bring "law and order" to Chhattisgarh. Attacking journalists, lawyers, activists, teachers, doctors and adivasis who speak against police violence, the Chhattisgarh State police is infamous for human rights violations and harassment of voices of dissent. In the wake of this report, the temerity of the Chhattisgarh police was evident when it burned effigies of several human rights activists and journalists including Professor Sundar, threatened the petitioners in press conferences, and, most outrageously, filed a case of criminal conspiracy, murder, rioting under Sections 120-B, 302, 147, 148 and 149 of the Indian Penal Code (IPC) against Nandini Sundar, Archana Prasad (Professor, JNU), Vineet Tiwari (Joshi Adhikar Institute & Communist Party of India), Sanjay Parate (Chhattisgarh state secretary, Communist Party of India (Marxist)) and others at the Tongpal Police Station. They were charged for killing an adivasi, Samnath Baghel; a charge contested by Baghel’s wife. The Inspector General went on to declare that, “strongest possible action” will be taken and announced to the media that Professor Sundar faces immediate arrest. This threat of impending arrest was subsequently rescinded after an uproar from members of civil society all over the country and a damning order by the NHRC summoning the Chief Secretary of the Government of Chhattisgarh and the IGP of Bastar for abuse of power.

The immediate consequence of speaking for the people of Chhattisgarh appears to be criminal charges, threats, and sustained harassment. Kalluri, along with other senior officers of the Chhattisgarh State police, have been meeting the Home Minister Rajnath Singh, giving press conferences defending their actions, filing cases against activists, and proclaiming loudly that activists are enemies for inciting the people of India. Declaring ‘Mission 2016’ and propping up vigilante groups like Samajik Ekta Manch and now AGNI (Action Group for National Integrity), the Chhattisgarh police has been attacking lawyers, journalists and civil rights groups attempting to conduct fact-findings in the area. In December 2016, Advocate Shalini Gera of Jagdalpur Legal Aid Group (JagLAG) along with others who were part of the legal team for Kumma Pottam (father of the 13 old boy alleged to have been killed during a fake encounter) were investigating his son's case. While there on the orders of the High Court, they were harassed by the police and accused of laundering money for the Maoists. Gera and the team managed to avoid being arrested. Just days before Gera faced these charges, a 7 member team from Telangana Democratic Forum (TDF) was picked up from Telangana and declared as arrested in Sukma, Chhattisgarh and charged under the same sections. They continue to languish in jail.

On the 7th of January, 2017, the National Human Rights Commission (NHRC) issued an interim report that held the Chhattisgarh State Police of raping 16 tribal women and asserted that, “prima-facie, human rights of the victims have been grossly violated by the security personnel of the Government of Chhattisgarh for which the State Government is vicariously liable.” The NHRC came to this conclusion after hearing 14 of the 34 women and is yet to bring out a complete report on the matter. On the 19th and 20th of January, Bela Bhatia had accompanied the team investigating the cases of women who had registered complaints of rape, sexual assault and loot by the security forces in 2015. In a move that is intended to terrorise such social activists, on the 22nd of January, Bhatia’s home was gheraoed by members of AGNI, she was threatened with physical violence and hounded out of her residence. On the 25th of January, Bela Bhatia met the Chief Minister of Chhattisgarh, Raman Singh, and appealed to him to ensure the “Observation of the rule of law by all state institutions including the police.”

When human rights organisations appealed to IG SRP Kalluri to ensure the safety of Bela Bhatia, he responded with abuses and said, “Maoists and their dogs like you will be stoned out of Bastar. Beware.”

Sixty-seven years of a Republic, but for how many more are we going to remain silent?

Vidhya is part of the Editorial Collective at the Indian Cultural Forum.

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